37288 Federal Register / Vol. 75, No. 124 / Tuesday, June 29, 2010 / Rules and Regulations 

(8) From subsection (e)(8) because the 

notice requirements of this provision 

could present a serious impediment to 

law enforcement by revealing 

investigative techniques, procedures, 

and existence of confidential 

investigations. 

(9) From subsection (f) because the 

agency’s rules are inapplicable to those 

portions of the system that are exempt 

and would place the burden on the 

agency of either confirming or denying 

the existence of a record pertaining to a 

requesting individual, which might in 

itself provide an answer to that 

individual relating to an ongoing 

investigation. The conduct of a 

successful investigation leading to the 

indictment of a criminal offender 

precludes the applicability of 

established agency rules relating to 

verification of record, disclosure of the 

record to that individual, and record 

amendment procedures for this record 

system. 

(10) For comparability with the 

exemption claimed from subsection (f), 

the civil remedies provisions of 

subsection (g) must be suspended for 

this record system. Because of the 

nature of criminal investigations, 

standards of accuracy, relevance, 

timeliness, and completeness cannot 

apply to this record system. Information 

gathered in an investigation is often 

fragmentary, and leads relating to an 

individual in the context of one 

investigation may instead pertain to a 

second investigation. 

(c) Specific systems of records 

exempted under (k)(2) and (k)(5). The 

Board exempts the RATB Fraud Hotline 

Program Files (RATB–12) system of 

records from the following provisions of 

5 U.S.C. 552a: 

(1) From subsection (c)(3) because 

disclosures from this system could 

interfere with the just, thorough and 

timely resolution of the complaint or 

inquiry, and possibly enable individuals 

to conceal their wrongdoing or mislead 

the course of the investigation by 

concealing, destroying or fabricating 

evidence or documents. 

(2) From subsection (d) because 

disclosures from this system could 

interfere with the just, thorough and 

timely resolution of the complaint or 

inquiry, and possibly enable individuals 

to conceal their wrongdoing or mislead 

the course of the investigation by 

concealing, destroying or fabricating 

evidence or documents. Disclosures 

could also subject sources and witnesses 

to harassment or intimidation which 

jeopardize the safety and well-being of 

themselves and their families. 

(3) From subsection (e)(1) because the 

nature of the investigatory function 

creates unique problems in prescribing 

specific parameters in a particular case 

as to what information is relevant or 

necessary. Due to close working 

relationships with other Federal, state 

and local law enforcement agencies, 

information may be received which may 

relate to a case under the investigative 

jurisdiction of another government 

agency. It is necessary to maintain this 

information in order to provide leads for 

appropriate law enforcement purposes 

and to establish patterns of activity 

which may relate to the jurisdiction of 

other cooperating agencies. 

(4) From subsection (e)(4)(G)–(H) 

because this system of records is exempt 

from the access provisions of subsection 

(d). 

(5) From subsection (f) because the 

agency’s rules are inapplicable to those 

portions of the system that are exempt 

and would place the burden on the 

agency of either confirming or denying 

the existence of a record pertaining to a 

requesting individual might in itself 

provide an answer to that individual 

relating to an on-going investigation. 

The conduct of a successful 

investigation leading to the indictment 

of a criminal offender precludes the 

applicability of established agency rules 

relating to verification of record, 

disclosure of the record to that 

individual, and record amendment 

procedures for this record system. 

Ivan J. Flores, 

Paralegal Specialist, Recovery Accountability 

and Transparency Board. 

[FR Doc. 2010–15691 Filed 6–28–10; 8:45 am] 

BILLING CODE 6820–GA–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 920 

[Doc. No. AO–FV–08–0174; AMS–FV–08– 

0085; FV08–920–3] 

Kiwifruit Grown in California; Order 

Amending Marketing Order No. 920 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule amends Marketing 

Order No. 920 (order), which regulates 

the handling of kiwifruit grown in 

California. The amendments are based 

on proposals by the Kiwifruit 

Administrative Committee (committee), 

which is responsible for local 

administration of the order. The 

amendments will redefine the grower 

districts into which the production area 

is divided and reallocate committee 

membership among the districts, revise 

the deadline for committee 

nominations, and revise committee 

meeting and voting procedures. The 

amendments were approved by 

kiwifruit growers in a referendum 

conducted from March 12 through 

March 26, 2010. The amendments are 

intended to improve the operation and 

administration of the California 

kiwifruit marketing order program. 

Proposed amendments that failed in 

referendum and are not effectuated in 

this final order include revising 

committee member terms of office, 

authorizing the Secretary to fill 

committee vacancies based upon 

committee recommendations, 

authorizing research and promotion 

programs and accepting voluntary 

contributions for such programs, and 

allowing substitute alternates to 

represent absent members at committee 

meetings. 

DATES: This rule is effective July 29, 

2010, except for §§ 920.12 and 920.20, 

which are effective August 1, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Laurel May or Kathleen M. Finn, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue, SW., Stop 0237, Washington, 

DC 20250–0237; Telephone: (202) 720– 

2491, Fax: (202) 720–8938, E-mail: 

Laurel.May@ams.usda.gov or 

Kathy.Finn@ams.usda.gov. 

Small businesses may request 

information on this proceeding by 

contacting Antoinette Carter, Marketing 

Order Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, 1400 

Independence Avenue, SW., Stop 0237, 

Washington, DC 20250–0237; telephone: 

(202) 720–2491, Fax: (202) 720–8938, Email: Anotoinette.Carter@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: Prior 

documents in this proceeding include a 

Notice of Hearing issued on November 

13, 2008, and published in the 

November 19, 2008, issue of the Federal 

Register (73 FR 69588); a Recommended 

Decision issued on November 5, 2009, 

and published in the November 12, 

2009, issue of the Federal Register (74 

FR 58216); and a Secretary’s Decision 

and Referendum Order issued on 

February 17, 2010, and published in the 

February 23, 2010, issue of the Federal 

Register (75 FR 7981). 

This action is governed by the 

provisions of sections 556 and 557 of 

title 5 of the United States Code and is 

therefore excluded from the 

requirements of Executive Order 12866. 


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Federal Register / Vol. 75, No. 124 / Tuesday, June 29, 2010 / Rules and Regulations 37289 

Preliminary Statement 

This final rule was formulated on the 

record of a public hearing held on 

December 9, 2008, in Modesto, 

California. Notice of this hearing was 

issued on November 13, 2008, and 

published in the Federal Register on 

November 19, 2008 (73 FR 69588). The 

hearing was held to consider the 

proposed amendment of Marketing 

Order No. 920, regulating the handling 

of kiwifruit grown in California. The 

hearing was held pursuant to the 

provisions of the Agricultural Marketing 

Agreement Act of 1937, as amended (7 

U.S.C. 601–674), hereinafter referred to 

as the ‘‘Act,’’ and the applicable rules of 

practice and procedure governing the 

formulation of marketing agreements 

and orders (7 CFR part 900). 

The Notice of Hearing described 

several amendment proposals submitted 

by the committee. Upon the basis of 

evidence introduced at the hearing and 

the record thereof, the Administrator of 

the Agricultural Marketing Service 

(AMS) on November 5, 2009, filed with 

the Hearing Clerk, U.S. Department of 

Agriculture, a Recommended Decision 

and Opportunity to File Written 

Exceptions thereto by December 14, 

2009. No exceptions were filed. 

A Secretary’s Decision and 

Referendum Order was issued on 

February 17, 2010, directing that a 

referendum be conducted during the 

period March 12 through March 26, 

2010, among California kiwifruit 

growers to determine whether they 

favored the proposed amendments to 

the order. To become effective, the 

amendments had to be approved by at 

least two-thirds of those growers voting 

or by voters representing at least twothirds of the volume of kiwifruit 

represented by voters voting in the 

referendum. Voters voting in the 

referendum favored three of the seven 

proposed amendments. 

The amendments favored by voters 

and included in this order will: 

1. Redefine the grower districts into 

which the production area is divided 

and reallocate committee membership 

among the districts; 

2. Require that committee member 

nomination meetings be held by June 1 

of each year in which nominations are 

to be made; and 

3. Authorize the committee to 

conduct business meetings by telephone 

or other means of communication, 

specify that votes cast during telephone 

meetings shall be taken by roll call, and 

specify that videoconferences shall be 

considered assembled meetings. 

Four amendments pertaining to: 

Revision of the beginning and ending 

dates of all committee member terms of 

office, the filling of mid-term committee 

vacancies, authority for research and 

marketing programs, and allowing 

substitute alternates to represent absent 

members at committee meetings failed 

to obtain the requisite level of support 

needed to pass in referendum. 

The Agricultural Marketing Service 

(AMS) also proposed to make such 

changes as may be necessary to the 

order so that all of the orders’ provisions 

conform to the effectuated amendments. 

AMS is making a clarifying conforming 

change to the order language in § 920.20 

that cross references § 920.31(l). 

A marketing agreement reflecting 

amendments to the order was 

subsequently mailed to all kiwifruit 

handlers in the production area for their 

approval. The marketing agreement was 

not approved by handlers representing 

at least 50 percent of the volume of 

kiwifruit handled by all handlers during 

the representative period of August 1, 

2008, through July 31, 2009. 

Small Business Considerations 

Pursuant to the requirements set forth 

in the Regulatory Flexibility Act (RFA) 

(5 U.S.C 601–612), AMS has considered 

the economic impact of this action on 

small entities. Accordingly, the AMS 

has prepared this final regulatory 

flexibility analysis. 

The purpose of the RFA is to fit 

regulatory actions to the scale of 

business subject to such actions so that 

small businesses will not be unduly or 

disproportionately burdened. Small 

agricultural service firms, which 

include handlers regulated under the 

order, have been defined by the Small 

Business Administration (SBA) (13 CFR 

121.201) as those having annual receipts 

of less than $7,000,000. Small 

agricultural growers have been defined 

as those with annual receipts of less 

than $750,000. 

There are approximately 30 handlers 

of kiwifruit subject to regulation under 

the order and approximately 220 

growers of kiwifruit in the regulated 

area. Information provided at the 

hearing indicates that the majority of the 

handlers would be considered small 

agricultural service firms. Hearing 

testimony also suggests that the majority 

of growers would be considered small 

entities according to the SBA’s 

definition. 

The order regulates the handling of 

kiwifruit grown in the State of 

California. Total bearing kiwifruit 

acreage has declined from a peak of 

approximately 7,300 acres in 1992–93 to 

about 4,000 acres in 2007–08. 

Approximately 24,500 tons of kiwifruit 

were produced in California during the 

2007–08 season—a decline of 

approximately 27,800 tons compared to 

the 1992–93 season. According to 

evidence provided at the hearing, 

approximately 30 percent of the 2007– 

08 California kiwifruit crop was shipped 

to export markets, including Canada, 

Mexico, Central American, and Asian 

destinations. 

Under the order, outgoing grade, size, 

pack, and container regulations are 

established for kiwifruit shipments; and 

shipping and inventory information is 

collected. Program activities 

administered by the committee are 

designed to support large and small 

kiwifruit growers and handlers. The 12- 

member committee is comprised of 

eleven grower representatives from the 

production area, as well as a public 

member. Committee meetings in which 

regulatory recommendations and other 

decisions are made are open to the 

public. All members are able to 

participate in committee deliberations, 

and each committee member has an 

equal vote. Others in attendance at 

meetings are also allowed to express 

their views. 

The committee appointed an 

amendment subcommittee to consider 

possible order revisions. The 

subcommittee developed a list of 

proposed amendments to the order, 

which was then presented to the 

committee. The committee met to 

review and discuss the subcommittee’s 

proposals at its meetings on January 30, 

2008, April 22, 2008, and July 9, 2008. 

At those meetings, the committee voted 

unanimously to support the proposed 

amendments that were forwarded to 

AMS and subsequently considered at 

the hearing. The hearing to receive 

evidence on the proposed changes was 

open to the public and all interested 

parties were invited and encouraged to 

participate and provide their views. 

The amendments are intended to 

provide the committee and the industry 

with additional flexibility in 

administering the order and producing 

and marketing California kiwifruit. 

Record evidence indicates that the 

proposals are intended to benefit all 

growers and handlers under the order, 

regardless of size. 

Amendment 1—Districts and 

Representation 

The amendment to redefine the 

districts into which the production area 

is divided and provide for the allocation 

of committee membership positions 

between the districts will not have a 

differential impact upon small and large 

entities. Such allocation will be based 

upon five-year production averages, or 


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37290 Federal Register / Vol. 75, No. 124 / Tuesday, June 29, 2010 / Rules and Regulations 

upon another basis approved by the 

Secretary. 

At the time the order was 

promulgated, kiwifruit acreage was 

more widespread throughout California 

and there were many more growers 

involved in kiwifruit production. The 

order originally provided for eight 

grower districts within the production 

area, with one membership seat 

apportioned to each district, and an 

additional seat reallocated annually to 

each of the three districts with the 

highest production in the preceding 

year. The structure was designed to 

afford equitable representation for all 

districts on the committee. 

Planted acreage has been gradually 

concentrated into two main regions in 

recent years. That, and the decline in 

the number of growers over time, 

prompted consolidation of the districts 

and reallocation of grower seats to better 

reflect the current composition of the 

industry. Under the amended order, the 

production area will be divided into 

three grower districts, and committee 

membership will be allocated 

proportionately among the districts 

based upon the previous five years’ 

average production for each district. The 

committee may recommend 

membership allocation on an alternative 

basis with the Secretary’s approval. The 

revisions will ensure that the interests 

of all large and small entities are 

represented appropriately during 

committee deliberations. 

Amendment 2—Nominations 

The amendment specifying that 

grower nomination meetings be held by 

June 1 of each nomination year will 

have no economic impact upon growers 

or handlers of any size. Historically, the 

order required that nomination meetings 

be held by July 15 of each year, but that 

deadline did not allow for timely 

processing of the nominations and 

selections of new members prior to the 

August 1 beginning of the terms of 

office. In recent years, the committee 

has been conducting nomination 

meetings earlier than prescribed by the 

order. This amendment codifies what 

has become normal practice. 

Amendment 3—Meeting and Voting 

Procedures 

The amendment authorizing the 

committee to meet by telephone or other 

means of communication is expected to 

benefit growers and handlers of all sizes 

by improving committee efficiencies 

and encouraging greater participation in 

industry deliberations. The amendment 

is not expected to result in any 

significant increased costs to producers 

or handlers. 

Under this amendment, video 

conference meetings will be considered 

assembled meetings and votes taken at 

such meetings will be considered inperson. Votes by telephone or other 

types of non-assembled meetings will be 

by roll call. 

This amendment will provide the 

committee with greater flexibility in 

scheduling meetings and will be 

consistent with current practices in 

other kiwi industry settings. The use of 

telephone and other means of 

communication will allow greater 

access to committee meetings for 

members as well as other interested 

persons. Additionally, administration of 

the order will be improved as urgent 

committee business can be addressed in 

a timely manner. 

Interested persons were invited to 

present evidence at the hearing on the 

probable regulatory and informational 

impact of the proposed amendments to 

the order on small entities. The record 

evidence indicates that the proposed 

amendments are intended to benefit all 

producers and handlers under the order, 

regardless of size. Furthermore, the 

record shows that any costs associated 

with implementing regulations will be 

outweighed by the benefits expected to 

accrue to the California kiwifruit 

industry. 

Paperwork Reduction Act 

Current information collection 

requirements for Part 920 are currently 

approved by the Office of Management 

and Budget (OMB) under OMB number 

0581–0189, ‘‘Generic OMB Fruit Crops.’’ 

No changes in those requirements as a 

result of this proceeding are needed. 

Should any changes become necessary, 

they will be submitted to OMB for 

approval. 

As with all Federal marketing order 

programs, reports and forms are 

periodically reviewed to reduce 

information requirements and 

duplication by industry and public 

sector agencies. 

AMS is committed to complying with 

the E-Government Act, to promote the 

use of the Internet and other 

information technologies to provide 

increased opportunities for citizen 

access to Government information and 

services, and for other purposes. 

Civil Justice Reform 

The amendments to Marketing Order 

920 stated herein have been reviewed 

under Executive Order 12988, Civil 

Justice Reform. They are not intended to 

have retroactive effect. 

The Act provides that administrative 

proceedings must be exhausted before 

parties may file suit in court. Under 

section 608c(15)(A) of the Act, any 

handler subject to an order may file 

with USDA a petition stating that the 

order, any provision of the order, or any 

obligation imposed in connection with 

the order is not in accordance with law 

and request a modification of the order 

or to be exempted therefrom. A handler 

is afforded the opportunity for a hearing 

on the petition. After the hearing, USDA 

would rule on the petition. The Act 

provides that the district court of the 

United Sates in any district in which the 

handler is an inhabitant, or has his or 

her principal place of business, has 

jurisdiction to review USDA’s ruling on 

the petition, provided an action is filed 

no later than 20 days after the date of 

the entry of the ruling. 

Order Amending the Order Regulating 

Kiwifruit Grown in California 

Findings and Determinations 

The findings and determinations set 

forth hereinafter are supplementary and 

in addition to the findings and 

determinations previously made in 

connection with the issuance of the 

order; and all of said previous findings 

and determinations are hereby ratified 

and affirmed, except as such findings 

and determinations may be in conflict 

with the findings and determinations set 

forth herein. 

(a) Findings and Determinations Upon 

the Basis of the Hearing Record 

Pursuant to the provisions of the 

Agricultural Marketing Agreement Act 

of 1937, as amended (7 U.S.C. 601–674) 

and the applicable rules of practice and 

procedure effective thereunder (7 CFR 

part 900), a public hearing was held 

upon the proposed amendments to 

Marketing Order No. 920 (7 CFR part 

920), regulating the handling of 

kiwifruit grown in California. 

Upon the basis of the evidence 

introduced at such hearing and the 

record thereof it is found that: 

(1) The marketing order, as amended, 

and as hereby further amended, and all 

of the terms and conditions thereof, will 

tend to effectuate the declared policy of 

the Act; 

(2) The marketing order, as amended, 

and as hereby further amended, 

regulates the handling of kiwifruit 

grown in the production area in the 

same manner as, and is applicable only 

to persons in the respective classes of, 

commercial and industrial activity 

specified in the marketing order upon 

which hearings have been held; 

(3) The marketing order, as amended, 

and as hereby further amended, is 

limited in application to the smallest 

regional production area which is 


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Federal Register / Vol. 75, No. 124 / Tuesday, June 29, 2010 / Rules and Regulations 37291 

practicable, consistent with carrying out 

the declared policy of the Act, and the 

issuance of several orders applicable to 

subdivision of the production area 

would not effectively carry out the 

declared policy of the Act; 

(4) The marketing order, as amended, 

and as hereby further amended, 

prescribes, insofar as practicable, such 

different terms applicable to different 

parts of the production area as are 

necessary to give due recognition to the 

differences in the production and 

marketing of kiwifruit grown in the 

production area; and 

(5) All handling of kiwifruit grown in 

the production area is in the current of 

interstate or foreign commerce or 

directly burdens, obstructs, or affects 

such commerce. 

(b) Determinations 

It is hereby determined that: 

(1) Handlers (excluding cooperative 

associations of growers who are not 

engaged in processing, distributing, or 

shipping kiwifruit covered by the order 

as hereby amended) who, during the 

period August 1, 2008, through July 31, 

2009, handled 50 percent or more of the 

volume of such kiwifruit covered by the 

order, as hereby amended, have not 

signed an amended marketing 

agreement; and 

(2) The issuance of this amendatory 

order, further amending the aforesaid 

order, is favored or approved by at least 

two-thirds of the growers who 

participated in a referendum and who, 

during the period August 1, 2008, 

through July 31, 2009 (which has been 

determined to be a representative 

period), have been engaged within the 

production area in the production of 

kiwifruit for market, such producers 

having also produced for market at least 

two-thirds of the volume of such 

commodity represented in the 

referendum. 

(3) In the absence of a signed 

marketing agreement, the issuance of 

this amendatory order is the only 

practical means pursuant to the 

declared policy of the Act of advancing 

the interests of kiwifruit growers in the 

production area. 

Order Relative to Handling of Kiwifruit 

Grown in California 

It is therefore ordered, That on and 

after the effective date hereof, all 

handling of kiwifruit grown in 

California shall be in conformity to, and 

in compliance with, the terms and 

conditions of the said order as hereby 

amended as follows: 

Certain provisions of proposals 

contained in Material Issue numbers 1, 

2, and 4 of the proposed order amending 

the order contained in the 

Recommended Decision issued by the 

Administrator on November 5, 2009, 

and published in the Federal Register 

on November 12, 2009, shall be and are 

the terms and provisions of this order 

amending the order and set forth in full 

herein. 

List of Subjects in 7 CFR Part 920 

Kiwifruit, Marketing agreements, 

Reporting and recordkeeping 

requirements. 

■ For the reasons set forth in the 

preamble, 7 CFR Part 920 is amended as 

follows: 

PART 920—KIWIFRUIT GROWN IN 

CALIFORNIA 

■ 1. The authority citation for 7 CFR 

part 920 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

■ 2. Revise § 920.12 to read as follows: 

§ 920.12 District 

District means the applicable one of 

the following described subdivisions of 

the production area or such other 

subdivision as may be prescribed 

pursuant to § 920.31: 

(a) District 1 shall include Butte, 

Sutter, and Yuba Counties. 

(b) District 2 shall include Tulare 

County. 

(c) District 3 shall include all counties 

within the production area not included 

in Districts 1 and 2. 

■ 3. Revise § 920.20 to read as follows: 

§ 920.20 Establishment and membership. 

There is hereby established a 

Kiwifruit Administrative Committee 

consisting of 12 members, each of whom 

shall have an alternate who shall have 

the same qualifications as the member 

for whom he or she is an alternate. The 

12-member committee shall be made up 

of the following: One public member 

(and alternate), and eleven members 

(and alternates). With the exception of 

the public member and alternate, all 

members and their respective alternates 

shall be growers or employees of 

growers. In accordance with § 920.31(l), 

district representation on the committee 

shall be based upon the previous fiveyear average production in the district 

and shall be established so as to provide 

an equitable relationship between 

membership and districts. The 

committee may, with the approval of the 

Secretary, provide such other allocation 

of membership as may be necessary to 

assure equitable representation. 

■ 4. In § 920.22, revise the first sentence 

of paragraph (a) to read as follows: 

§ 920.22 Nomination. 

(a) Except as provided in paragraph 

(b) of this section, the committee shall 

hold, or cause to be held, not later than 

June 1 of each year in which 

nominations are made, or such other 

date as may be specified by the 

Secretary, a meeting or meetings of 

growers in each district for the purpose 

of designating nominees to serve as 

grower members and alternates on the 

committee. * * * 

* * * * * 

■ 5. Revise paragraph (b) of § 920.32 to 

read as follows: 

§ 920.32 Procedure. 

* * * * * 

(b) Committee meetings may be 

assembled or held by telephone, video 

conference, or other means of 

communication. The committee may 

vote by telephone, facsimile, or other 

means of communication. Votes by 

members or alternates present at 

assembled meetings shall be cast in 

person. Votes by members or alternates 

participating by telephone or other 

means of communication shall be by 

roll call; Provided, That a video 

conference shall be considered an 

assembled meeting, and votes by those 

participating through video conference 

shall be considered as cast in person. 

Dated: June 24, 2010. 

Rayne Pegg, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2010–15744 Filed 6–28–10; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 71 

[Docket No. FAA–2009–1183; Airspace 

Docket No. 09–ASW–38] 

Amendment of Class E Airspace; 

Osceola, AR 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final rule. 

SUMMARY: This action amends Class E 

airspace for Osceola, AR. 

Decommissioning of the Osceola nondirectional beacon (NDB) at Osceola 

Municipal Airport has made this action 

necessary to enhance the safety and 

management of Instrument Flight Rule 

(IFR) operations at the airport. 

DATES: Effective date 0901 UTC, 

September 23, 2010. The Director of the 

Federal Register approves this 


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